The Problem of Police Powers for People Living While Black

A few years back, I was on my way to an appearance at the Brattleboro Literary Festival, in Vermont. My coauthor, Peter S. Onuf, and I had decided to rent a car and drive up from New York, taking the scenic route. The weather was great, and it would be an adventure. Night fell as we drove through Massachusetts, and we were in the middle of a conversation when I noticed lights flashing behind us. Peter saw them too, and immediately pulled over to the shoulder of the road.

Perhaps because we were on the highway, and it was dark, the officer came to the passenger side of the car, where I was sitting. He motioned for me to open my window. I complied. He asked if we knew why we had been pulled over, and we were at a total loss. He said Peter had veered over the center line on the road. The problem with that explanation was that there was no line on that stretch of road. There had been some construction, and workers were in the process of putting a new lines down, as we could see looking farther ahead. He asked our names, which we gave. He asked Peter for his license.

And then he asked me for my ID. I was sitting there calmly, wearing my seat belt; I doubt seriously that the officer would have asked Peter’s wife, who is white, for her identification under these circumstances. The thing that was unusual about the two of us—and which, I believe, made the officer “suspicious” of us—was that Peter is white and I am black. We were an incongruous couple and had no reason to be together unless we were up to no good.

Aside from writing works of history, I teach Criminal Procedure at Harvard Law School. But the intricacies of the law at that moment in the car were the furthest thing from my mind. What mattered was my deep awareness of the raw power of the person who had a gun and who had pulled us over for crossing a line that did not exist. A person who asked for my identification to run a warrant search on me, though he had no reason to believe that I was dangerous or had been involved in any crime (or even a traffic infraction).

I handed him my identification. He did a warrant check. A few minutes passed. Then he let us go. Nothing violent occurred. Unlike Michael Brown, Sandra Bland, George Floyd, Breonna Taylor, and so many others whose names are known because of tragic encounters with the police, I walked—or, rather, was driven—away from the event with no visible impairment. This whole episode could be seen as trivial, given that I came to no physical harm.

But the moment was deeply instructive. I had been on the receiving end of the power I’d discussed many times over the years with my students in cases and hypotheticals that presented similar situations. The event encapsulated for me many of the issues that have been raised in recent years and have come to a head in the past two weeks, about the nature of policing in America and the second-class status of black citizenship in the United States.

Criminal Procedure is one of those law school classes that makes for eager, if sometimes difficult, class discussions. It typically covers the Fourth, Fifth, and Sixth Amendments, with a heavy emphasis (in my classes, at least) on the search and seizure provisions of the Fourth Amendment. Over the course of twenty-seven years and thousands of students at two very different law schools—first at New York Law School, and now at Harvard—I’ve heard a good array of strong opinions about police officers and their interactions with citizens. My students mostly formed these attitudes before they got to class.

That isn’t surprising. Students may have never had a reason to think seriously about Torts, Civil Procedure, or Contracts, but the work of police officers is more familiar. In addition to being depicted on ubiquitous television dramas, now under fire for what some see as their sanitizing and valorizing of police departments, law enforcement officers are the most visible agents of state power. That is particularly so in African-American communities, which are more heavily policed than other communities.

Even in society at large, police officers’ direct interactions with people usually take place under circumstances of at least some degree of stress—from traffic infractions to serious crimes. Certainly, any driver—actually, anyone who rides in a car—knows that it is near-impossible to drive any length of time without violating some technical rule of the road that would allow an officer, should he or she decide to do so, to pull the driver over.

The police wield enormous power under rules that give officers broad discretion to act or not act, or to act in a particular way; and they often use it, as studies have shown, in a racially discriminatory manner. There is no doubt that our country’s troubled racial history has helped shape current attitudes. It should not surprise us that the police more often apply that discretion to black people in degrading and dangerous ways.

Yet the Supreme Court has rejected the idea that pretextual stops are unconstitutional—such as a situation, for example, in which a police officer claims to have stopped a motorist for failing to use a blinker before making a turn, when the officer really made the stop because she suspected the driver was a drug dealer but didn’t have reasonable suspicion to make the stop, or probable cause to arrest the driver. As the blizzard of Fourth Amendment cases we read in class demonstrate, much can happen in the aftermath of a traffic stop for failing to signal a change of lane or to come to a complete halt at a stop sign—or crossing an unmarked center line. And the news is full of stories about police stopping and detaining people for inconsequential matters with the encounters ending in the death of the person detained.

I may not have been thinking of the substance of the law when Peter and I were pulled over, but I did think about the way things typically work out in criminal law in practice. In case after case, courts adopt the presumption that police officers are telling the truth when they describe their encounters with citizens. If things had escalated in any way—say, I had spoken to the officer in what he took to be the wrong tone, and matters had gone downhill from there, I knew that his version of events would be the one credited.

The most important thing I had going for me in this circumstance was Peter. His status as a white man was a form of protection, a fact that was at once comforting and enraging—good for the immediate moment, terrible for what it said about the kind of citizenship I possess, second-class to his first. Peter could exercise his first-class citizenship by calmly answering the officer’s questions, and being safe in a way that I could not presume to be. We have recently seen white men (albeit of a very different type from Peter) exercise their first-class citizenship by carrying assault rifles into the Michigan statehouse while the governor and legislature were in session, feeling safe enough in their power to get in the faces of law enforcement officers and yell. Black people do not have that kind of citizenship.

What, someone might ask, about your Dartmouth and Harvard educations, your professorships at Harvard, your Pulitzer Prize? None of those things were of any help in this situation. Had I been with my husband, who is black, I confess I would have been even more worried, mainly for him.   

The issue was not so much about law, but about whether the person who exercised power over me actually saw me as a citizen who, discretion would suggest, should be left alone, or as a member of a race destined to be policed to the fullest extent that discretion would allow. Note how the language of citizenship and republicanism are seldom applied to black Americans. When our rights are violated, whites like those who showed up with weapons at the Michigan statehouse insisting they are ready to defend citizens against government overreach rarely take up our cause.

There are signs that the country is ripe for change. With a swiftness that seems almost unreal, public opinion on the role of police in society has changed after the killing of George Floyd, perhaps under the influence of a pandemic that has forced Americans, against our more usual cultural instincts, to think of ourselves as part of a community. On top of that, we have witnessed the performance of the police during the recent nationwide protests—videos like that of an officer kicking with full force a woman sitting on the ground covering her eyes after being tear-gassed, and those of officers charging with swinging batons against peaceful protesters of all colors.

Seeing the militarization of the police and the possibility that they—and the actual military—could be deployed against Americans on a partisan basis calls to the mind some of the founding generation’s concerns about standing armies. The Founders were thinking of soldiers. Of course, they never envisioned police departments as large and as heavily armed as exist today, standing armies in their own right. A majority of Americans are now convinced that something needs to be done about policing in the United States; among other things, demilitarizing police departments, reducing their forces, and retiring the judicially created doctrine of qualified immunity that protects officers who harm citizens.

We have reached, as the corporate types like to say, an inflection point. When I teach Criminal Procedure again, in the spring of 2021, it will be in a different world.